COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

SUSAN CONE SCOTT 

 MEMORANDUM OPINION* BY 

v. Record No. 2998-95-2 JUDGE SAM W. COLEMAN III 

 DECEMBER 3, 1996 

FREDERIC W. SCOTT, JR. 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

 Paul M. Peatross, Jr., Judge 

 J. W. Harman, Jr. (Harman & Harman, on 

brief), for appellant. 

 Edward B. Lowry (Michie, Hamlett, Lowry, 

Rasmussen & Tweel, P.C., on brief), for 

appellee. 

 Susan Cone Scott (wife) appeals the trial court's dismissal 

of her motion for an increase in spousal support. The trial 

court held that the provisions of Code § 20-109 and the terms of 

the parties' separation agreement that set support precluded the 

court from modifying spousal support. Wife contends that the 

court misconstrued the provisions of the parties' separation 

agreement, which was incorporated into their final divorce 

decree, in that the agreement implicitly allows the court to 

modify spousal support. Finding no error, we affirm the trial 

court's decision. 

 "Code § 20-109 authorizes the trial court to modify spousal 

support and maintenance upon the petition of either party if the 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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court determines that there has been a material change in 

circumstances that justifies a modification." Pendleton v. 

Pendleton, 22 Va. App. 503, 506, 471 S.E.2d 783, 784 (1996). 

However, Code § 20-109 also provides that, 

 if a stipulation or contract signed by the 

party to whom such relief might otherwise be 

awarded is filed before entry of a final 

decree, no decree or order directing the 

payment of support and maintenance for the 

spouse . . . shall be entered except in 

accordance with that stipulation or contract. 

This provision "restricts the court's jurisdiction over awarding 

[spousal support] to the terms of the contract." McLoughlin v. 

McLoughlin, 211 Va. 365, 368, 177 S.E.2d 781, 783 (1970). 

Similarly, the restriction on a court's authority to set spousal 

support applies to petitions to modify, increase, or decrease 

spousal support when the parties have a prior agreement as to the 

amount of spousal support. 

 In this case, the parties entered into a separation 

agreement on January 3, 1980. The agreement provided: 

 Based on the present financial resources and 

income of each of the parties, the present 

needs of Wife and the present cost of living, 

the parties agree that Husband shall pay to 

Wife, commencing January 1, 1980, as spousal 

support the sum of $500.00 per month, on the 

first day of each month. Such payments shall 

cease upon Wife's remarriage or death, or 

upon Husband's death, or upon Wife cohabiting 

with a man not her husband for a continuous 

period of 90 days or more. 

The agreement was incorporated by reference into the May 19, 1980 

final divorce decree. 
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 The agreement also contained, in a separate paragraph, a 

release provision which stated that, "[e]xcept as herein 

otherwise expressly provided, each party hereby releases the 

other from any and all liabilities or obligations, whether of 

support or otherwise . . . ." 

 The wife contends that, because the agreement states that 

the amount of spousal support was determined based upon the 

parties' "present" resources, the needs of wife, and cost of 

living, that the agreement necessarily intended that support 

could be modified according to the changing "present" resources, 

needs, and cost of living of the parties. We disagree. 

 In Virginia, property settlement agreements are contracts 

subject to the same rules of formation, validity, and 

construction as other contracts. Smith v. Smith, 3 Va. App. 510, 

513, 351 S.E.2d 593, 595 (1986); Tiffany v. Tiffany, 1 Va. App. 

11, 15, 332 S.E.2d 796, 799 (1985). "[W]here an agreement is 

complete on its face, is plain and unambiguous in its terms, the 

court is not at liberty to search for its meaning beyond the 

instrument itself." Globe Iron Constr. Co. v. First Nat'l Bank 

of Boston, 205 Va. 841, 848, 140 S.E.2d 629, 633 (1965). 

 It is the function of the court to construe 

the contract made by the parties, not to make 

a contract for them. The question for the 

court is what did the parties agree to as 

evidenced by their contract. The guiding 

light in the construction of a contract is 

the intention of the parties as expressed by 

them in the words they have used, and courts 

are bound to say that the parties intended 

what the written instrument plainly declares. 
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Hederick v. Hederick, 3 Va. App. 452, 455-56, 350 S.E.2d 526, 528 

(1986) (quoting Wilson v. Holyfield, 227 Va. 184, 187, 313 S.E.2d 

396, 398 (1984)). "[W]here there is an express and enforceable 

contract in existence which governs the rights of the parties, 

the law will not imply a contract in contravention thereof." 

Royer v. Board of County Supvrs., 176 Va. 268, 280, 10 S.E.2d 

876, 881 (1940) (citation omitted). 

 The unambiguous express language of the parties' agreement 

stated that the amount of spousal support the wife would receive 

and the husband would pay would be $500 per month. The agreement 

contained no provision allowing for a court to modify the 

contractual amount of spousal support or allowing for either 

party to petition for such relief. We cannot hold that the 

parties, by implication, intended such a provision based upon the 

language in this agreement. To do so would render the release 

"from any and all liabilities or obligations, whether of support 

or otherwise" nugatory and meaningless. 

 It seems clear to us that the law is well 

settled that where parties expressly 

contract, under what circumstances an 

obligation may arise with reference to a 

certain subject-matter, where the same is 

entered into without fraud or mutual mistake, 

it excludes the possibility of an implied 

covenant of a contradictory or different 

nature. 

Southern Biscuit Co. v. Lloyd, 174 Va. 299, 311-12, 6 S.E.2d 601, 

606 (1940) (quoting Johnson v. Iglehart Bros., 95 F.2d 4, 8, 

cert. denied, 304 U.S. 585 (1938). We will not construe one 
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provision in a contract in such a manner that would render 

another provision meaningless, particularly when the obvious 

construction of both provisions will give meaning and effect to 

each. 

 That provision in the contract which set spousal support at 

$500 per month based on the parties' "present" financial 

resources, income, needs, and cost of living merely set forth 

those factors upon which the parties relied in arriving at the 

amount of support; that provision does not expressly or by 

implication provide that the parties may petition for judicial 

modification of spousal support based on a change in "present" 

circumstances. Had the parties so intended they should have so 

provided in the contract and, moreover, they should not have 

included a provision that would have been in conflict by 

"releas[ing] the other from any and all . . . obligations . . . 

of support . . . ." 

 Wife's reliance upon Blank v. Blank, 10 Va. App. 1, 389 

S.E.2d 723 (1990), and Jennings v. Jennings, 12 Va. App. 1187, 

409 S.E.2d 8 (1991), is misplaced. Both cases deal with spousal 

support that was judicially determined in the first instance 

under Code § 20-107.1. Those cases did not involve contractual 

spousal support agreed upon by the parties or an agreement 

incorporated into the divorce decree. See Jennings, 12 Va. App. 

at 1196, 409 S.E.2d at 14 (holding that the language of the 

separation agreement required the judge to exercise his 
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discretion under Code § 20-107.1 in determining the amount of 

spousal support). Those cases are inapposite. 

 The trial court did not err in finding that it did not have 

jurisdiction to alter spousal support under the terms of the 

agreement. Accordingly, we affirm the decision of the trial 

court. 

Affirmed.